The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1887-09-22
BURNS DECLARED GUILTY
In Three Minutes After Judge White
house Finished His Charge.
The Right of a State to Make Its
Police Regulations
Not Altered by Congressional Power
to Regulate Commerce.
Especial to the Press.1

In the Supreme Court this morning. Three
witnesses were first summoned by the
government who testified that they pur-
chased packages of liquor of Burns broke
them open and drank their contents.
The defence called the respondent himself
to the stand who gave testimony as to his
importations, and acknowledged that he
procured the liquors for the retail trade and
had sold them in Augusta and was selling
them at the present time. Two packages of
the liquor seized from Burns by order of
Gov. Bodwell were exhibited in court
Burns thought he was doing legitimate
business.
A question arose which threatened
to put an end to the testing of the imported
liquor question. From the invoice sheet it
it was learned that the last Importation
had been consigned to Isaac ID. Dana,
bonded goods from the steamships to the
depots. This was done to secure better
freight rates. so it was alleged.
Burns was put on the stand, testifying
that Dana was made the consignee simply
as forwarding agent. The Judge instruct
ed the jury that they might regard Burns as
the importer.
The counsel argued the case briefly. Her.
bert M. Heath, Esq, for the defence, held
that Burns had the legal right to sell import
ed liquors under that section of the consti-
tuition which says the United States shall
regulate commerce. He cited the Maryland
decisions, and three in Maine, including the
one in Somerset county where imported
liquors belonging to Noah Chandler, were
seized from the American Express office,
December 8, 1878. A decision was rendered
by Judges Walton, Barrows, Danforth and
Libbey for the claimant.
Mr.. Baker argued that the prohibitory law
was enacted by the Legislature as police
regulation and that importers were as
amenable to it as domestic dealers. he held
that the law which was applicable to condi-
tions of twenty-five years ago would not fit
these days of advanced civilization, and
new decision reversing the old ones might be
looked for.
Judge Whitehouse then delivered his
charge of which the following is an abstract:
The Statutes of Maine, after prescribing
the methods by which intoxicating liquors
may be legitimately dispensed for medicinal
and mechanical purposes. expressly declare
that mo person shall, at any time, . :.
sell any intoxicating liquors of whatever or
igin;" and again, that "all places used for
the illegal keeping or illegal sale of intoxicat-
ing liquors, are common nuisances."
1t is not in controversy that the defendant
has used his building for the sale of intoxi-
eating liquors, in violation of the laws of
MAtva tkat hA lAr asx xk,rw.
mon nuisance, unless be is exempted from
the operation of these laws by some para
mount authority; but 1t is contended that
such paramount authority is found in the
general statutes of the United States, au-
thoriZing the Importation of goods from
foreign country upon the payment of certain
duties.
Now, gentlemen, you have perceived from
the language of the statute l have read to
you that in the State of Maine importers are
not excepted by the language of our law. No
person shall sell intoxicating liquors." 1t
does not except or exempt importers from the
operation of it. But you will perceive that
our legislature has not presumed to say that
no person shall import liquors into the State
of Maine. 1t has not pres to interfere
with the prerogative Of Congress to regulate
commerce in terms. 1t has said that mo
person shall sell" not that no person shall
import.
Now on the other hand there is no act of
sell intoxicating liquors in the State Of
Maine. There Is, therefore, no necessary
conflict in terms between the law of Con-
gress and the law Of the State of Maine.
And question arises here whether there is
a necessary conflict in the practical opera
ton of these two laws, Federal and State.
1t is not contended that the defendant is pro-
tected by this law of Congress in selling in
his place of business in Augusta any intoxi-
eating liquors except those which he has
h ts.A xsAtxl -
original package. This is the only conten-
tion Of the defendant. Now, while it is the
prer0gative of Congress thus to regulate
commerce, to prescribe the regulations con-
cerning the importation of merchandise from
a foreign country, it is an universally ac-
kn0wledged power Inherent in the
States, always possessed by the
States, and still retained by the
States, to establish and enforce all such laws
and police regulations as they may deem es-
sential for the preservation of the health
and the morals of the people of those States,
for the protection of the lives and property
of the citizens. and for the maintenance of
the best interests of society in those states.
This is known familiarly as the police power
of the States, and 1t has been by virtue of
govern persons and things within their own
dominions that from the early history of the
States of this union, from colonial times,
legislation has been justified and enforced
respecting the trafhc and excessive lndulg-
encesin intoxicating liquors.
The appalling record of vice, crime, pau
perisrn, and every form of suffering and
misery resulting from the unrestrained traf-
fic and excessive indulgence in intoxicating
liquors you might say would surely justly
the most stringent legislation and the most
vigorous enforcement of such legislation for
the suppression of such traffic. We are to
assume that the Legislature of Maine has
acted In good faith in this matter; that in
enacting this legislation and the provisions
with special reference to the enforcement of
being OF the people of the State of
Maine, and has. not sought in any
manner to interfere with the regu-
lations of commerce with foreign nations
or with the prerogatiye of Congress.
But If the contention of the defence pre-
walls, every importer may become in effect
retail dealer in intoxicating liquors within
the State of Maine, and the power to regu-
late commerce becomes absolutely destruct-
i've OF the entire prohibitory law of Maine;
and If there is necessary conflict, the ques-
tlon arises whether this acknowledged police
power of the State to suppress any common
nuisance within its border known to be de-
Structlve OF the manhood of its people and
the highest and best interests of society.
shall be entirely surrendered, solely in the
interest OF foreign commerce.
This precise question has not been directly
involved In any decision Of the State or Fed
eral courts, or if involved, has not been con
sidered and determined. Sixty wears ago il
was held by the Federal Court, in case
arising in the State of Maryland, that a
State law requiring an importer to paw $50
for license to sell the goods Imported
by him was invalid as interfering
with the regulation of commerce. The
question was then considered how far the
imported goods were protected by the priyi-
lege acquired by the importer on the payment
of duties; and it was held that they were NOT
proted after they had been mingled with the
general property of the country, :and they
would not be considered as so mingled If sold
by the importer himself in the original pack
age; but when the package was broken up
for retail it would be subject to the Operation
of State laws. The merchandise in that case
was package of dry goods, and the
question of the police regulations of
the State was in no way involved !:
but the power of the States to prohibit the
introduction Of articles destructive to the
lives or health Of the people, was expressly
conceded by the court. In late questions in
volving analogous questions some of the
learned justices of the same court contended
that by the payment of the duties the impor-
ter only purchased the right to introduce his
goods in search of a market. AS an original
proposition this would seem to be wise and
SOLITARY adjustment of the respective powers
of State and Nation. Every importer consid-
ers the tastes, habits, moral tendencies and
physical necesessites of the people to whom
he proposes to offer his goods. He should
ascertain at his peril, whether the police reg